Adjovi fails with appeal against N$23,5m Kora Awards judgement

Music awards promoter Ernest Adjovi’s company Mundial Telecom SARL was correctly ordered by a High Court judge to repay N$23,5 million to the Namibia Tourism Board (NTB), the Supreme Court has found in an appeal judgement.

Mundial Telecom had to refund N$23,5 million to the NTB after the company failed to stage the All Africa Kora Music Awards in Namibia eight years ago, appeal judge Dave Smuts said in the appeal judgement, delivered in the Supreme Court yesterday.

Smuts found that a clause in an agreement that Mundial Telecom and the NTB signed in December 2015 obligated the company to refund the money that the NTB had paid to it before the company was due to stage the All Africa Kora Music Awards in Namibia in March 2016.

The clause Smuts referred to states that Mundial Telecom would refund the amount paid to it by the NTB, with reasonable expenses deducted, within 60 days if the Kora Awards ceremony did not take place in Namibia as was planned.

In terms of the agreement between the NTB and the company, Mundial Telecom undertook to promote Namibia as a tourism destination through television clips which were to be shown in African countries participating in the Kora Music Awards.

However, after the awards ceremony was not staged in Namibia as promised, the NTB sued the company to have its money paid back.

Mundial Telecom opposed the legal action which the NTB took against it in the Windhoek High Court, but lost the case when judge Herman Oosthuizen ordered in January 2022 that the company should pay N$23,5 million plus interest at an annual rate of 20%, calculated from the start of July 2016, to the tourism board.

Having lost the case in the High Court, Mundial Telecom appealed to the Supreme Court against Oosthuizen’s judgement.

In the Supreme Court’s judgement, Smuts noted that only one witness, the NTB’s then chief executive Digu //­Naobeb, testified during the hearing of the NTB’s claim against Mundial Telecom.

Adjovi did not testify during the hearing, and no other witnesses testified on behalf of his company either.

Since Adjovi did not testify, claims made by him in a witness statement in which he said then president Hage Geingob and former attorney general Sacky Shanghala had been “well aware of the circumstances surrounding this matter” did not become part of the evidence on which the judge decided the case.

Mundial Telecom claimed the payments that the NTB made to it in terms of their agreement were late, and that this entitled the company to cancel the agreement less than a week before the awards ceremony was supposed to be held.

However, according to //Naobeb, the company accepted the late payments by the NTB in December 2015 and January and February 2016, Smuts noted.

He commented that Mundial Telecom’s attempt to cancel the contract with the NTB because of the late payment by the tourism board “would appear to be contrived and a stratagem devised in the face of the event not going ahead on 21 March 2016 as planned and undertaken”.

Given that the company accepted the late payments made to it, it was not open for it to cancel the agreement with the NTB because the payments had been made late, Smuts stated.

He also recorded that Mundial Telecom did not state what expenses it wanted to be deducted from the money it has to pay back to the NTB, and also did not present any evidence on such expenses.

In the result, Oosthuizen could not be faulted for ordering Mundial Telecom to repay N$23,5 million to the NTB, said Smuts, dismissing the company’s appeal and ordering it to pay the NTB’s legal costs in the matter.

Appeal judge Sylvester Mainga and acting judge of appeal Theo Frank agreed with Smuts’ judgement.